VAC v JAD & Ors

When deciding whether to authorise a statutory will, the Court of Protection must apply the objective best interests test and consider all relevant circumstances through the structured process required by the Mental Capacity Act 2005. There is no general presumption against authorising a statutory will merely because the validity of a recent will is disputed or uncertain. The dispute, the Court’s ability to investigate it, and the protected person’s earlier testamentary wishes are relevant factors, but none automatically determines the outcome. A previous will is relevant evidence of wishes and feelings, although its weight depends on the circumstances in which it was made. The Court may conclude that making a statutory will is in the protected person’s best interests where this avoids the costs and family consequences of later contentious probate litigation.

This was an unopposed application by VAC for authority to execute a statutory will for JAD, who lacked testamentary capacity. JAD’s 1995 will divided her estate broadly equally between her three children and made provision for her grandchildren. A 2004 will left the estate to one child, and a purported 2006 will divided it between two children. Their validity was disputed, but the Court of Protection had no jurisdiction to determine that issue. A district judge had initially refused permission, expressing concern that the statutory-will jurisdiction might be used to litigate probate disputes. The issue before the court was whether a statutory will could nevertheless be authorised where doubts existed about later wills.

1. The application was granted. The property and affairs deputy was authorised to execute the statutory will in the agreed draft on JAD’s behalf. The will was to be held in safe custody, and specified costs were payable from JAD’s funds.
2. Execution of a will for a protected person is a decision for the Court itself and cannot be delegated to a deputy: see section 20(3)(b) of the Mental Capacity Act 2005. The governing consideration is JAD’s best interests under section 1(5), determined by the structured process in section 4.
3. The best interests inquiry is objective and is not a substituted-judgment exercise. The Court must consider all relevant circumstances, including ascertainable wishes and feelings, beliefs and values, and factors the person would probably have considered. The views of appropriate consultees, including a deputy, should also be taken into account where practicable and appropriate. The approach in Re P (Statutory Will) [2009] EWHC 163 (Ch); [2010] Ch 33 and Re M [2009] EWHC 2525 (Fam) was adopted and applied.
4. The Court of Protection has no jurisdiction to rule on the validity of a will. The practical difficulty of investigating testamentary capacity, knowledge and approval, or undue influence may therefore be a relevant factor. It does not create a presumption or general principle that a statutory will must be refused whenever a recent will is disputed. Such an approach would give one factor priority over the statutory best-interests assessment.
5. JAD’s 1995 will was a clear and coherent expression of her wishes when she had capacity. The later wills raised sufficient doubts, particularly in the absence of evidence about their preparation, for it to be in JAD’s best interests to make a statutory will reflecting the earlier distribution. This avoided the prospective erosion of the estate by contentious probate costs and the family consequences of leaving a disputed will in place. The Court did not determine the validity of either later will.

This was a first-instance decision. Earlier applications and directions had been determined by District Judge Ashton, including refusals dated 8 July 2008 and 1 December 2009. The latter order was set aside on reconsideration on 25 January 2010, when the application was permitted to proceed to a substantive hearing before a Chancery Circuit Judge.